Subscribe

Follow

The Secrecy Behind the Drugs Used to Carry Out the Death Penalty

Inmates killed by lethal injection used to get a dose of sodium thiopental. But that drug is no longer available, and, in a blow to transparency, prison officials in Missouri and elsewhere won't say how it has been replaced.

We noticed that you have an

AD BLOCKER

ENABLED

Please consider disabling it
for our site, or supporting our
work in one of these ways

The death chamber at the Missouri Correctional Center in Bonne Terre, Mo. (AP Images)

The sharpest battles over capital punishment today are being fought over the identity of the drugs officials seek to use in lethal injections, how those drugs are manufactured and obtained by executioners, and the obligations state officials have to share material information about the drugs with death-row inmates and the rest of the world. Late Friday, in a case out of Missouri, the Eighth U.S Circuit Court of Appeals rendered the most significant ruling yet to come out of these battles. The result is catastrophic for those who believe the means of capital punishment should generally be as transparent as its ends.

The Missouri case, and many others like it, all stem from the same development in 2011. Early that year, the manufacturers of sodium thiopental, the key ingredient in the lethal "cocktail" states were using, announced they would stop making the drug due to objections about its use for capital punishment. That prompted state officials to scramble for other drugs and to obtain those drugs in circumstances that raise substantial doubts about the efficacy of the drugs to be used. And that in turn prompted defense attorneys to press for information about exactly what chemicals state officials plan to use to kill their clients.

The rationale of this ruling could forever preclude any capital defendant from ever inquiring about anything related to the drugs a state chooses to use against him.

And that, in turn, has caused state officials to begin to hide, in a way they never have before, the manner in which they are obtaining lethal injection drugs, the identities of the "compounding pharmacies" that are supplying the drugs, and even precisely what is in the drugs officials want to use. Last year in Georgia, for example, state lawmakers, at the request of corrections officials, passed a law that keeps this information secreteven from the state's own judiciary. In Texas, meanwhile, state officials announced a few months ago that they would not return to a compounding pharmacy the lethal drugs it had obtained there.

The issue is not just a semantic one. No execution can be entirely painless, but the Eighth Amendment prohibits "cruel and unusual" punishment, and there now are questions about whether these new injection cocktails cause impermissible suffering on the part of the condemned. In Ohio earlier this month, for example, one of these new cocktails was used on a man named Dennis McGuire, who, according to a journalist who witnessed the execution, "struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing to a new, two-drug execution method."

Missouri Breaks

When domestic stores of sodium thiopental started dissipating, the first move Missouri made was to declare that propofol—the same drug that killed Michael Jackson—would be used to execute inmates there. But objections to the use of that drug in executions were even more pronounced than the objections had been to the use of sodium thiopental. The European Union threatened to "forbid or restrict the exportation" of the propofol to the United States (where it is used as an anesthetic in common operations). Last October, Missouri backed down—and backed away from its plans to use propofol.

Plan B, Missouri decided, was to use "an injection of five to 10 grams of pentobarbital" for its executions and to rely upon a compounding pharmacy to provide the drug. Compounding pharmacies are perhaps best known through the years for their ability to skirt federal and state regulations, so much so that President Obama last year signed into federal law a measure designed to properly regulate them. Not only did Missouri plan to use an untested drug on its death-row inmates, then, but to use one manufactured in circumstances that precluded anyone other than state officials to evaluate the drug's quality.

While all this was going on, while state officials were desperately seeking to ensure that executions would continue in Missouri, while Congress was debating whether to regulate compounding pharmacies because of the dubious products often created there, a group of prisoners sentenced to death sued George Lombardi, the director of the Missouri Department of Corrections, seeking basic information about the chemicals that would be used to kill them. In a civil case filed in 2012, they asked for basic information like this:

the identities of (1) the physician who prescribes the chemical used in Missouri executions, (2) the pharmacist who compounds the chemical, and (3) the laboratory that tests the chemical for potency, purity, and sterility.

In early December 2013, a federal trial judge granted the plaintiffs' discovery request, ordering Lombardi to provide to lawyers for the condemned men only some information about the drug, its pharmacist, and the lab in which its made, to allow the condemned men to fully evaluate the efficacy of the drugs to be used against them. The director immediately sought help from the Eighth Circuit, asking the appeals court both to stay the trial judge's discovery order and to protect state officials from ever having to disclose, even in private to lawyers, material information about the pentobarbital that is to be injected into their clients.

Two weeks later, on December 27th, a panel of Eighth Circuit judges issued a split ruling. Director Lombardi didn't have to disclose "the identity of the prescribing physician" for the pentobarbital but did have to disclose, again to a limited number of people, "the identities of the compounding pharmacy and the testing laboratory." But again this was not a compromise in which Lombardi was at all interested. He asked the entire Eighth Circuit, on an emergency basis, to overrule itself. The Eighth Circuit agreed to reconsider the matter and issued a ruling late Friday (here is the link) with profound ramifications in death penalty law.

The folks at St. Louis Public Radio have done excellent work reporting on this story. Here's the latest from the station, posted Saturday night, offering important context and perspective on what's happening here:

The quality of compounded drugs, unlike manufactured drugs, varies from batch to batch. Inspections by the Missouri Board of Pharmacy have found that about one out of every five drugs made by compounding pharmacies fails to meet standards. Lawyers representing death-row inmates argue that the identity is important, so they can find out if the pharmacy has been cited for shoddy practices or is even properly licensed.

The state has offered reassurances that the drug is pure and potent by having a testing lab examine it. However, the testing lab is a controversial one. Analytical Research Laboratories (ARL), in Oklahoma City, OK, approved a batch of steroids for commercial use that ended up killing dozens in 2012. The deaths sparked debate over the regulatory practices for compounding pharmacies, which aren't regulated by the Food and Drug Administration like drug manufacturers are.

The inmate's pharmacy expert also points out the lab report found an unknown substance in the drug, but the lab still approved it.

The Eighth Circuit's Ruling

The majority ruling in In Re Lombardi sets precedent that is terrible from a First Amendment perspective, an Eighth Amendment perspective, and from a general view of due process in capital cases. It is "chilling," in the words of one death penalty expert I spoke with over the weekend. Seven judges ruled entirely in favor of Director Lombardi, reversing even the limited discovery plan that the Eighth Circuit panel had endorsed just one month ago. But it was the circular analysis the judges employed, and the potential application of it to future death penalty cases, that is most alarming here. The essence of the ruling is here:

The plaintiffs complain that Missouri’s use of compounded pentobarbital in its execution protocol creates a substantial risk of severe pain or an objectively intolerable risk of severe pain, and thus constitutes cruel and unusual punishment in violation of the Eighth Amendment. In furtherance of that claim, they seek to investigate the physician, pharmacy, and laboratory involved in the execution process.

But the plaintiffs do not allege that the risk of harm arising from the State’s current lethal-injection protocol is substantial when compared to known and available alternatives. They do not allege that a different lethal-injection protocol, or a different method of execution (e.g., lethal gas, electrocution, or firing squad), is more humane.

In denying a motion to dismiss the original complaint, and thus allowing discovery to proceed, the district court ruled that “Plaintiffs are not required to propose an alternative method of execution as an element of their Eighth Amendment claim.” R. Doc. 31, at 7.

In our view, this is a plain misreading of the Supreme Court’s decision in Baze v. Rees and the Eighth Amendment. Where, as here, there is no assertion that the State acts purposefully to inflict unnecessary pain in the execution process, the Supreme Court recognized only a limited right under the Eighth Amendment to require a State to change from one feasible method of execution to another.

The controlling opinion of the Chief Justice in Baze provides that if a State refuses to adopt a readily available alternative method of execution that would significantly reduce a substantial risk of severe pain, then “a State’s refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.” 553 U.S. at 52 (plurality opinion) (emphasis added).

In sum: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives.” Id. at 61 (emphasis added).

Ponder that for a moment, for it is truly an extraordinary interpretation of the law. Instead of permitting condemned prisoners to learn more about the drug to be used to kill them, so they could determine whether its use might constitute "cruel and unusual" punishment, this court found instead that these death-row inmates have the burden of proving at the outset of the litigation that Missouri's use of pentobarbital is the worst of all "known and available alternatives." The rationale of this ruling could forever preclude any capital defendant from ever inquiring about anything related to the drugs a state chooses to use against him.

The Dissent

Three judges of the Eighth Circuit dissented from this dubious view. They wrote:

Next, the majority elects to adopt a reading of Baze which places an absurd burden on death row inmates. The pleading standard advanced by the majority would require the prisoners to identify for the Director a readily available alternative method for their own executions. Now, any individual wishing to challenge a state's execution method as unconstitutional must identify a readily available alternative method for their own deaths before any discovery has been conducted to survive a Rule 12(b)(6) motion to dismiss.

The challenge of proposing a readily available alternative method seems nearly impossible if the prisoners are denied discovery and, thus, unable to ascertain even basic information about the current protocol. The proposition that a plaintiff must propose an alternative method for his own execution in order to state a claim for relief under the Eighth Amendment is unreasonable.

Assuming, for the sake of argument, the dicta in Chief Justice Roberts' plurality opinion in Baze is the new pleading standard, the prisoners have still sufficiently alleged a claim under the Eighth Amendment. The prisoners seek an alternative protocol to Missouri's current method of producing and testing compounded pentobarbital. They desire a method which ensures the chemical composition, purity, efficacy, and safety of compounded pentobarbital. The prisoners have never argued properly compounded and tested pentobarbital would not be an alternative method.

Instead, the prisoners' argument is the use of a compounded substance purported to resemble pentobarbital, acquired from a non-traditional, non-FDA-approved compounding pharmacy which likely lacks the ability to test chemicals for identity, potency, purity, and contamination, is what violates the Eighth Amendment. It is clear the readily available alternative method here is one which guarantees the chemicals used in Missouri's executions do not cause "serious illness and needless suffering" and "give rise to 'sufficiently imminent dangers.'" Baze, 553 U.S. at 50.

Confused about which set of judges you should believe? Do yourself a favor and read Baze v. Rees yourself so you can decide whether the justices in Washington intended the result we see here in Missouri. Indeed, Friday's ruling cries out for review and reversal by the Supreme Court before another court in another state adopts the dubious reasoning applied by the majority here. Whatever else the protections of the first amendment and the eighth amendment mean, they mean a person who is about to be executed has a right to know precisely how and with what ingredients the state intends to kill him.

Postscript

In Missouri, in Oklahoma, in Texas, in Ohio, in Louisiana, wherever state officials ardently seek to impose capital punishment the story since 2011 has been the same. Bureaucrats know they have been forced to use dicier, less efficient drugs for these executions in the absence of sodium thiopental. They understand that the means by which they are obtaining these drugs, if not outright shady, does not come close to ensuring a level of transparency and independent review that both the medical community, and the legal community, see all the time in the ordinary course of business.

We are seeing an abdication of the judiciary's role to ensure that capital punishment is neither arbitrary nor capricious.

In response to these concerns these officials have not made the process of capital punishment more transparent or made themselves more accountable for the lethal drugs they seek to use in our name. They have not candidly acknowledged the legitimate questions that surround the use of and products from these compounding pharmacies. They've headed instead in precisely the opposite direction. They have sought to increase secrecy over the drugs they want to use. And they have sought to demonize critics instead of responding substantively to the criticism surrounding compounded chemicals.

What does the Eighth Circuit ruling really mean? It means that no independent mind will evaluate the drugs to be used in upcoming Missouri executions. It means there will be no evidentiary hearing into the qualifications of the testing lab that reportedly tested the compounding pharmacy's pentobarbital already used in two executions in Missouri. It means that executives at Analytic Research Laboratories will not have to answer questions before the execution of another Missouri prisoner, a man named Herbert Smulls, who is scheduled to be injected with pentobarbital sometime after midnight this coming Wednesday.

Most Popular

Two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole.

And if thy brother, a Hebrew man, or a Hebrew woman, be sold unto thee, and serve thee six years; then in the seventh year thou shalt let him go free from thee. And when thou sendest him out free from thee, thou shalt not let him go away empty: thou shalt furnish him liberally out of thy flock, and out of thy floor, and out of thy winepress: of that wherewith the LORD thy God hath blessed thee thou shalt give unto him. And thou shalt remember that thou wast a bondman in the land of Egypt, and the LORD thy God redeemed thee: therefore I command thee this thing today.

— Deuteronomy 15: 12–15

Besides the crime which consists in violating the law, and varying from the right rule of reason, whereby a man so far becomes degenerate, and declares himself to quit the principles of human nature, and to be a noxious creature, there is commonly injury done to some person or other, and some other man receives damage by his transgression: in which case he who hath received any damage, has, besides the right of punishment common to him with other men, a particular right to seek reparation.

Even when a dentist kills an adored lion, and everyone is furious, there’s loftier righteousness to be had.

Now is the point in the story of Cecil the lion—amid non-stop news coverage and passionate social-media advocacy—when people get tired of hearing about Cecil the lion. Even if they hesitate to say it.

But Cecil fatigue is only going to get worse. On Friday morning, Zimbabwe’s environment minister, Oppah Muchinguri, called for the extradition of the man who killed him, the Minnesota dentist Walter Palmer. Muchinguri would like Palmer to be “held accountable for his illegal action”—paying a reported $50,000 to kill Cecil with an arrow after luring him away from protected land. And she’s far from alone in demanding accountability. This week, the Internet has served as a bastion of judgment and vigilante justice—just like usual, except that this was a perfect storm directed at a single person. It might be called an outrage singularity.

Writing used to be a solitary profession. How did it become so interminably social?

Whether we’re behind the podium or awaiting our turn, numbing our bottoms on the chill of metal foldout chairs or trying to work some life into our terror-stricken tongues, we introverts feel the pain of the public performance. This is because there are requirements to being a writer. Other than being a writer, I mean. Firstly, there’s the need to become part of the writing “community”, which compels every writer who craves self respect and success to attend community events, help to organize them, buzz over them, and—despite blitzed nerves and staggering bowels—present and perform at them. We get through it. We bully ourselves into it. We dose ourselves with beta blockers. We drink. We become our own worst enemies for a night of validation and participation.

Forget credit hours—in a quest to cut costs, universities are simply asking students to prove their mastery of a subject.

MANCHESTER, Mich.—Had Daniella Kippnick followed in the footsteps of the hundreds of millions of students who have earned university degrees in the past millennium, she might be slumping in a lecture hall somewhere while a professor droned. But Kippnick has no course lectures. She has no courses to attend at all. No classroom, no college quad, no grades. Her university has no deadlines or tenure-track professors.

Instead, Kippnick makes her way through different subject matters on the way to a bachelor’s in accounting. When she feels she’s mastered a certain subject, she takes a test at home, where a proctor watches her from afar by monitoring her computer and watching her over a video feed. If she proves she’s competent—by getting the equivalent of a B—she passes and moves on to the next subject.

Most of the big names in futurism are men. What does that mean for the direction we’re all headed?

In the future, everyone’s going to have a robot assistant. That’s the story, at least. And as part of that long-running narrative, Facebook just launched its virtual assistant. They’re calling it Moneypenny—the secretary from the James Bond Films. Which means the symbol of our march forward, once again, ends up being a nod back. In this case, Moneypenny is a send-up to an age when Bond’s womanizing was a symbol of manliness and many women were, no matter what they wanted to be doing, secretaries.

Why can’t people imagine a future without falling into the sexist past? Why does the road ahead keep leading us back to a place that looks like the Tomorrowland of the 1950s? Well, when it comes to Moneypenny, here’s a relevant datapoint: More than two thirds of Facebook employees are men. That’s a ratio reflected among another key group: futurists.

During the multi-country press tour for Mission Impossible: Rogue Nation, not even Jon Stewart has dared ask Tom Cruise about Scientology.

During the media blitz for Mission Impossible: Rogue Nation over the past two weeks, Tom Cruise has seemingly been everywhere. In London, he participated in a live interview at the British Film Institute with the presenter Alex Zane, the movie’s director, Christopher McQuarrie, and a handful of his fellow cast members. In New York, he faced off with Jimmy Fallon in a lip-sync battle on The Tonight Show and attended the Monday night premiere in Times Square. And, on Tuesday afternoon, the actor recorded an appearance on The Daily Show With Jon Stewart, where he discussed his exercise regimen, the importance of a healthy diet, and how he still has all his own hair at 53.

Stewart, who during his career has won two Peabody Awards for public service and the Orwell Award for “distinguished contribution to honesty and clarity in public language,” represented the most challenging interviewer Cruise has faced on the tour, during a challenging year for the actor. In April, HBO broadcast Alex Gibney’s documentary Going Clear, a film based on the book of the same title by Lawrence Wright exploring the Church of Scientology, of which Cruise is a high-profile member. The movie alleges, among other things, that the actor personally profited from slave labor (church members who were paid 40 cents an hour to outfit the star’s airplane hangar and motorcycle), and that his former girlfriend, the actress Nazanin Boniadi, was punished by the Church by being forced to do menial work after telling a friend about her relationship troubles with Cruise. For Cruise “not to address the allegations of abuse,” Gibney said in January, “seems to me palpably irresponsible.” But in The Daily Show interview, as with all of Cruise’s other appearances, Scientology wasn’t mentioned.

An attack on an American-funded military group epitomizes the Obama Administration’s logistical and strategic failures in the war-torn country.

Last week, the U.S. finally received some good news in Syria:.After months of prevarication, Turkey announced that the American military could launch airstrikes against Islamic State positions in Syria from its base in Incirlik. The development signaled that Turkey, a regional power, had at last agreed to join the fight against ISIS.

The announcement provided a dose of optimism in a conflict that has, in the last four years, killed over 200,000 and displaced millions more. Days later, however, the positive momentum screeched to a halt. Earlier this week, fighters from the al-Nusra Front, an Islamist group aligned with al-Qaeda, reportedly captured the commander of Division 30, a Syrian militia that receives U.S. funding and logistical support, in the countryside north of Aleppo. On Friday, the offensive escalated: Al-Nusra fighters attacked Division 30 headquarters, killing five and capturing others. According to Agence France Presse, the purpose of the attack was to obtain sophisticated weapons provided by the Americans.

The Wall Street Journal’s eyebrow-raising story of how the presidential candidate and her husband accepted cash from UBS without any regard for the appearance of impropriety that it created.

The Swiss bank UBS is one of the biggest, most powerful financial institutions in the world. As secretary of state, Hillary Clinton intervened to help it out with the IRS. And after that, the Swiss bank paid Bill Clinton $1.5 million for speaking gigs. TheWall Street Journal reported all that and more Thursday in an article that highlights huge conflicts of interest that the Clintons have created in the recent past.

The piece begins by detailing how Clinton helped the global bank.

“A few weeks after Hillary Clinton was sworn in as secretary of state in early 2009, she was summoned to Geneva by her Swiss counterpart to discuss an urgent matter. The Internal Revenue Service was suing UBS AG to get the identities of Americans with secret accounts,” the newspaper reports. “If the case proceeded, Switzerland’s largest bank would face an impossible choice: Violate Swiss secrecy laws by handing over the names, or refuse and face criminal charges in U.S. federal court. Within months, Mrs. Clinton announced a tentative legal settlement—an unusual intervention by the top U.S. diplomat. UBS ultimately turned over information on 4,450 accounts, a fraction of the 52,000 sought by the IRS.”

Members of Colombia's younger generation say they “will not torture for tradition.”

MEDELLÍN, Colombia—On a scorching Saturday in February, hundreds of young men and women in Medellín stripped down to their swimsuit bottoms, slathered themselves in black and red paint, and sprawled out on the hot cement in Los Deseos Park in the north of the city. From my vantage point on the roof of a nearby building, the crowd of seminude protesters formed the shape of a bleeding bull—a vivid statement against the centuries-old culture of bullfighting in Colombia.

It wasn’t long ago that Colombia was among the world’s most important countries for bullfighting, due to the quality of its bulls and its large number of matadors. In his 1989 book Colombia: Tierra de Toros (“Colombia: Land of Bulls”), Alberto Lopera chronicled the maturation of the sport that Spanish conquistadors had introduced to South America in the 16th century, from its days as an unorganized brouhaha of bulls and booze in colonial plazas to a more traditional Spanish-style spectacle whose fans filled bullfighting rings across the country.

Some say the so-called sharing economy has gotten away from its central premise—sharing.

This past March, in an up-and-coming neighborhood of Portland, Maine, a group of residents rented a warehouse and opened a tool-lending library. The idea was to give locals access to everyday but expensive garage, kitchen, and landscaping tools—such as chainsaws, lawnmowers, wheelbarrows, a giant cider press, and soap molds—to save unnecessary expense as well as clutter in closets and tool sheds.

The residents had been inspired by similar tool-lending libraries across the country—in Columbus, Ohio; in Seattle, Washington; in Portland, Oregon. The ethos made sense to the Mainers. “We all have day jobs working to make a more sustainable world,” says Hazel Onsrud, one of the Maine Tool Library’s founders, who works in renewable energy. “I do not want to buy all of that stuff.”